Russell v Yarra Ranges Shire Council  VSC 486 (29 October 2009) On 29 October 2009, Kaye J of the Supreme Court of Victoria considered the duty that a court or Tribunal might owe to an unrepresented litigant to ensure that the person understands his or her legal rights. His Honour considered the principles of natural justice under common law and also the right to a fair hearing under s 24 of the Charter of Human Rights and Responsibilities Act 2006. Justice Kaye found that the Victorian Civil and Administrative Tribunal had not breached the principles of natural justice and therefore had not denied rights under s 24 of the Charter.
The Supreme Court proceeding involved an application for leave to review a decision of VCAT to dismiss an application to cancel a permit granted by the Yarra Ranges Shire Council for the development of the Monbulk Community Hub.
Following the processes of the Planning and Environment Act 1987, an application by Council for permission to construct the Community Hub was advertised and objections received. The Applicant, Mr Russell, did not lodge an objection. A meeting of the Council resolved to issue the permit on 9 September 2008. Mr Russell met with the Council on 9 October 2008, where he was advised that a permit had been issued. That same day Mr Russell lodged an application with the Victorian Civil and Administrative Tribunal to cancel the permit. The Council issued the planning permit for the development on 10 October 2008.
The application to cancel the permit was heard by VCAT on 6 February 2009. Mr Russell, who was unrepresented at the hearing, unsuccessfully applied for an adjournment. Mr Russell argued that there had been a material mistake in the grant of the permit. The Deputy President dismissed Mr Russell’s application.
The application to the Supreme Court for leave to appeal included the following grounds:
- VCAT denied the applicant natural justice in failing to adjourn the proceeding to allow the applicant to obtain legal advice which resulted in the applicant losing an opportunity to amend the application; and
- that the Tribunal denied the applicant his right to a fair hearing pursuant to s 24 of the Charter.
Kaye J considered what duty a court or Tribunal might owe to an unrepresented litigant to ensure the litigant understands his or her rights. His Honour considered precedent, including the recent decision of Bell J in Tomasevic v Travaglini  VSC 337, which demonstrated two propositions:
- that the court ought to ensure that an unrepresented litigant understands his or her rights so that the litigant is not unfairly disadvantaged; and
- that the court shall refrain from advising a litigant how or when a litigant should exercise those rights. The court should ensure it does not become or be perceived to become an advocate for an unrepresented litigant.
The court must strike an appropriate balance between the two propositions.
Section 24 of the Charter protects the right to a fair hearing. The right is expressed follows:
A person charged with a criminal offence of a party to a civil proceeding has the right to have the charge or proceeding decide by competent, independent and impartial court or Tribunal after a fair and public hearing.
This decision considered the duty of the court to advise unrepresented litigants as to their rights as being part of the right to a fair hearing.
The Court considered whether the Tribunal was required to, but did not offer to the applicant an opportunity to adjourn his application to enable him to seek legal advice regarding his application.
Kaye J considered the conduct of the two hearings before the Tribunal on 30 January and 6 February 2009. His Honour noted that:
- on 30 January 2009 the applicant was represented at the Tribunal by counsel;
- the same Deputy President sat on both hearing dates and was entitled to assume the applicant had received appropriate advice;
- in the ruling on 30 January, the Deputy President noted that proceeding was an application to cancel the permit and not an application to review the Council’s decision to grant the permit; and
- the transcript did not demonstrate that the applicant should have been offered an opportunity to adjourn in order to seek further advice regarding amending the application.
Kaye J considered whether the Charter provided a positive right to a fair hearing that went further than the common law. At 42, His Honour stated that:
I do not consider that s 24(1) of the Charter adds materially to the right of the applicant to a fair hearing before the Tribunal, for the purposes of the matters agitated in the application before me.
In this case the court decided pursuant to the common law that there had been no breach of natural justice. It also rejected the submission that the Tribunal had failed to comply with the Charter.
In summary it was held that the applicant did not have a real or significant basis for contending that the Tribunal denied natural justice or any rights under s 24 of the Charter. Accordingly, the application for leave to appeal was dismissed.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2009/486.html.
Annette Jones is a solicitor with Russell Kennedy